The Equality Law Project supports front line organisations to understand and use the Equality Act 2010. Through the Equality Law Briefing we aim to provide you information on developments relevant to race equality and the role of the Equality Act 2010 and other relevant legislation.

On the 28th of March 2017 ROTA held a seminar on ‘Employment Rights Post Brexit’. This was particularly poignant as Article 50 to exit the EU was triggered the next day. The Prime Minister Theresa May emphasised that ‘workers rights will be protected’. From a government that introduced employment tribunal fees and repealed the statutory discrimination questionnaire, one must question how much of these promises can be taken at face value? Since the introduction of tribunal fees claims brought to the tribunal have dropped by 70%. This government has done little, if anything at all to instil confidence that it will
protect the rights of workers (labour) as opposed to protecting the interests of employers (capital), in particular the rights of BAMER and migrant workers who are often the most vulnerable. In this context the seminar focused on raising awareness amongst voluntary and community sector organisations working with BAMER and migrant communities about existing employment / labour rights; how much of these rights are underpinned by EU law; are we at risk of losing hard fought for rights; and finally how to work in collaboration to ensure we protect and strengthen existing rights as well as work collectively to enforce them.

The logical fallacy of conflating race and class in monitoring and interpreting socio-economic inequality allows those in government and policy makers to conveniently avoid addressing both forms of inequality. In order to understand race and class it is important to understand the two separately before analysing the way the two phenomena interact.

Teresa May in the summer of 2016 launched an audit of public services to reveal racial disparities. Given that it is a duty under the Equality Act for public services to publish this information, and the government has undermined this duty publicly as being red tape, it begs the question why has this audit been launched? The stated aim of the audit is that the public will be able to “check how their race affects how they are treated on key issues such as health, education, and employment, broken down by geographic location, income, and gender” [but not class]. It goes on to say “the audit will show disadvantages suffered by white
working class people as well as ethnic minorities”. Note it does not say that the audit will show disadvantages suffered by working class people from white as well as ethnic minority backgrounds. In one statement the audit has racialised 'white working class' people as well as stripped ethnic minorities of class. It makes the assumption that class is only relevant if one is white. It fails to acknowledge the fact that BAMER people are disproportionately represented within the working classes.

Employment status is currently a pertinent issue given the business models arising from the ‘gig’ economy, i.e. Uber drivers and the resulting precarious working conditions. Under UK employment law there are three main employment statuses – employee, worker, and contractor. Which category one falls into and the degree of statutory protection depends on whether 1) the person is required to provide the service personally; 2) the obligation on the employer to provide work and the employee to accept the work; and 3) the degree of control the employer has on the person to dictate the terms of how, when, and where the work is to be
carried out. If all three factors are present then the person will be considered an employee. Where not all three factors are present the person may still be considered a worker and may be entitled to some employment rights. Where none of the factors are present the person is considered a contractor. Employees have the greatest degree of protection under UK employment law and contractors have the least degree of protection.

Pimlico Plumbers Ltd and another v Smith [2017] EWCA Civ 51

In this case the court of appeal considered whether a plumber engaged by Pimlico Plumbers Ltd (Pimlico) was a worker or a contractor as this would determine his rights under the Employment Rights Act 1996, the Working Time Regulations 1998 and the Equality Act 2010.

Mr. Smith carried out plumbing work for Pimlico between August 2005 and April 2011. He claimed that following a heart attack in January 2011 he was unfairly dismissed and that his dismissal constituted discrimination on the grounds of disability. In 2005 Mr. Smith had signed an agreement with Pimlico which stated that he was a self-employed contractor. However, the agreement also stated that the terms of his agreement for work are detailed in the ‘Company Procedure and Working Practice Manual’ which he must read and agree to comply with before signing the agreement. The manual stipulated that he was required to work a minimum
of 40 hours per week; wear The Company logo’ed uniform at all times; and must always be available during his shift to take on call work.

The Court of Appeal held that the Employment Tribunal was right to conclude that Mr. Smith cannot be a contractor, as Pimlico Plumbers Ltd. could not be considered a customer or client of Mr. Smith’s buisiness given the degree of control exercised by Pimlico Plumbers Ltd over Mr. Smith. It held that the Employment Tribunal made no error in law or principle in reaching the conclusion that Mr. Smith is a ‘worker’ as he was an integral part of Pimplico Plumbers’ operations and subordinate to Pimplico Plumbers Ltd.

The Master of Rolls, Sir Terence Etherton highlighted at paragraph 3 of the Approved Judgment:

“The case puts a spotlight on a business model under which operatives are intended to appear to clients of the business as working for the business, but at the same time the business itself seeks to maintain that, as between itself and its operatives, there is a legal relationship of client or customer and independent contractor rather than employer and employee or worker.”

News and Events

Minority Report: Race and Class in post-Brexit Britain

In the aftermath of the 2016 referendum on leaving or living within the European Union, debates on race and class have descended from inadequate to toxic, according to the Runnymede Trust and CLASS.

An immigration specialist, looking at the future for EU citizens seeking to work in the UK, argues that migration, whether from Europe or elsewhere, has always been controlled in the interests of the economy.

The April 2017 issue of Race & Class tackles the impact of Fox News in perpetuating the (mis)representing of news and creating racist discourses which help to obstruct the addressing of racism in the criminal justice system.

Social Mobility Commission research report: Ethnicity, Gender and Social Mobility

This report explores the complexities of adding ethnicity and gender to an analysis of socioeconomic Status (SES) gaps. It considers some of the ways in which gender, ethnicity and SES interact with education to produce or reduce social mobility.